Dissenting Opinion
Pivarnik, J.I cannot agree with the majority’s conclusion that a moot question remains before this court by action of the General Assembly in passing Public Law 335, Section 19, effective October 1, 1977. After finding section 4(b) of Ind. Code § 35-30-10.1-1 et seq. (Burns 1975), constitutionally invalid, the trial court expressly found that 4(b) was not severable from the other portions of the Act. In so doing, the trial court in his order used a test urged by the defendant as follows:
“[T]he test of severability is whether the legislature would have passed the statute had it been presented without the invalid feature.”
If we are to take judicial notice that pending this appeal the General Assembly did in fact pass this statute without section 4(b), it then removes the severability question from our consideration because the General Assembly has in fact severed this section from the statute.
*344The question still remains whether or not the state can now proceed to prosecute these individuals, which prosecution the trial court prevented by its dismissal, if we hold that section 4(b) can be severed from the rest of the statute. The state urges that these defendants could still be prosecuted under this chapter with section 4(b) severed, inasmuch as section 4 (a) provides that it shall be a defense that the matter was distributed or that the performance was performed for legitimate scientific or educational purposes, and section 4 (b) only attempts to list those individuals or institutions which would be presumed to be distributing or performing for those purposes.
It appears to me that the state’s distinction of Fairchild v. Schanke, (1953) 232 Ind. 480, 113 N.E.2d 159, from the present situation is sound. The state has argued that the instant case can be distinguished from Fairchild for at least three reasons. First, the Fairchild court was construing a statute dealing with “gambling,” a term that is easily defined in both the statute and pertinent case law. In the present case the court is interpreting a statute dealing with “obscenity,” a term which even the United States Supreme Court has a great deal of difficulty defining. Second, in Fairchild it was quite obvious that if the exempted organization were allowed to conduct gambling activities, the activities would have been identical to the activities of “professional” gamblers. In the situation at hand there is an obvious difference between exhibiting material which appeals to the prurient interest and taken as a whole lacks serious literary, artistic, political or scientific value and which depicts in a patently offensive way sexual conduct for profit, and a film used by a medical school instructor or physician to study sexual disability. Further, in the present case the class of exemptions provided in the statute covers only groups which exist for a specific purpose, such as museums, schools, churches, medical clinics, doctors, and public libraries. Also exempted were organizations supported in whole or in part by publically do*345nated funds. These organizations are subject to strict regulation in regard to their purpose.
In sum, I believe that we could reverse the trial court in its dismissal order, so that this matter could be presented to a jury at the trial level and a determination made there.
Givan, C.J., concurs.Note. — Reported at 375 N.E.2d 205.